Complaint to Managers Below Level of Alleged Harasser Not Effective Use of Company's Policy
- February 27, 2015
In most circumstances, employers are vicariously liable for sexual or other harassment engaged in by their supervisors. Under the Supreme Court’s Faragher/Ellerth defense, employers can sometimes avoid liability for supervisor harassment if they had an effective anti-harassment policy in place, and the victim failed to take advantage of this policy. Taking advantage of the policy starts with the victim notifying the employer of the harassing conduct. Most harassment policies set forth multiple avenues for complaining about offensive conduct, including complaints to responsible management.
Earlier this month in an unpublished opinion, the Fifth Circuit Court of Appeals rejected a claim from a plaintiff who complained of harassment, but only to managers who reported to the alleged harasser. In Blanton v. Newton Assocs., Inc., a Pizza Hut employee claimed that his female store manager engaged in a pattern of racial and sexual harassment. The trial court dismissed the complaint based on the plaintiff’s failure to use Pizza Hut’s harassment complaint policy.
The plaintiff appealed, noting that he had reported the alleged harassment to multiple managers within the restaurant. The Fifth Circuit affirmed dismissal of the claim, finding that the employer had established the Faragher/Ellerth defense. While the plaintiff had complained to management, all of the unanswered complaints were directed toward low-level supervisors who also reported to the alleged harasser. When the plaintiff eventually complained to higher level management, the company investigated and terminated the store manager within days.
Most companies train their managers to immediately relay any report of harassment to human resources regardless of the identity of the harasser, or whether the information came from an employee outside of their direct supervision. This case demonstrates, however, that employers can establish reasonable reporting alternatives for harassment complaints, and may not be held responsible when the victim fails to use the procedures contained in the policy.